Return to Old Spy Rules Is Seen as Deadline Nears

WASHINGTON  With Congress at an impasse over the government’s spy powers, Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence.

That prospect seemed almost inconceivable just a few months ago, when Congressional negotiators and the White House promised a quick resolution to a bruising debate over the government’s surveillance powers. But the dispute has dragged on. Though both sides say they are hopeful of reaching a deal, officials have been preparing classified briefings for Congress on the intelligence “degradation” they say could occur if there is no deal in place by August.

The deadline is considered critical because of a series of secret one-year wiretapping orders that were approved last August under a controversial temporary wiretapping law. The law allowed the National Security Agency to use blanket court orders to focus on groups of suspected Qaeda terrorists based overseas. But those orders are growing staler by the day, officials said, and will begin to expire this August if nothing is done. (Wiretaps intended for Americans already require individual warrants issued by a secret court, known as the Foreign Intelligence Surveillance Act court, or FISA court.)

“We’ll start losing intelligence capabilities,” Senator Christopher S. Bond of Missouri, the ranking Republican on the Intelligence Committee, said in an interview.

Civil libertarians who oppose the government’s broadened surveillance authority said a return to the more restrictive rules might be just what is needed to restore necessary checks on the government’s powers.

But government and Congressional officials said in interviews that they saw it as a dangerous step backward. A return to the old rules, they said, would mean that government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas.

Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said. A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection.

In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism. Part of the problem, officials said, is that communications going from one foreign country to another sometimes travel through a telephone switch on American soil and, under some interpretations of the older rules, could not be tapped without an individual warrant.

Attorney General Michael B. Mukasey has described the idea of reverting to the older standards of foreign surveillance as “unthinkable,” adding, “I still hope and actually think that it won’t happen.”

Even some Democrats, at odds with the White House for months over the surveillance issue, said they were worried about the summer situation. “Until August, we’re O.K.,” said one senior Democratic Congressional aide involved in the negotiations. “After August, we’re not O.K.”

Officials said that even at the start of the year, when it became apparent that Congress might allow the temporary surveillance law to expire, intelligence officials took no steps to try to go to the secret intelligence court and renew the one-year authorizations from last August so that they would have extra time. That decision could now prove problematic. At several points in the negotiations, Democrats have offered temporary extensions in the surveillance law, but the White House has resisted that idea, making it less likely that Congress would be able to find a stopgap solution this summer.

Congress began debating the National Security Agency’s spy powers in December 2005, after it was revealed that President Bush had authorized the agency to conduct wiretaps without court warrants on the international communications of Americans suspected of terrorist ties.

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Senator Christopher S. Bond has been the White Houses point man in talks about the Foreign Intelligence Surveillance Act.Credit...Doug Mills/The New York Times

Nearly two and a half years later, the stalemate on the issue reflects the deep divisions in Congress over how to suture the wounds created by the wiretapping program. Few people in Washington thought the debate would drag on this long, through dire warnings from the White House about potential harm to national security, through retreats and pushbacks by the Democrats, and now through a game of chicken over how to resolve the impasse.

“I was hoping we’d made progress,” said Mr. Bond, who has been the White House’s point man in the talks. “But the longer this drags on  I’m not so sure.”

Senator John D. Rockefeller IV, the West Virginia Democrat who leads the Intelligence Committee and is heading negotiations for the Democrats, declined to be interviewed, his office said. He said in a statement that “it has taken many months of difficult negotiations to get to this point, but I’m increasingly optimistic that we’re on the verge of a deal.”

Democrats and Republicans have been negotiating behind closed doors for months, with occasional appearances by senior administration officials. The main stumbling block has been whether or how to give the phone companies immunity to lawsuits over their role in helping Mr. Bush’s warrantless wiretapping program; dozens of such suits are pending. Both sides have given some ground in the talks.

The Republicans have yielded somewhat on immunity for the companies: The current proposal from Mr. Bond would allow the FISA court to review the administration’s requests and determine by a “preponderance of the evidence” whether the requests were valid.

Mr. Bond’s proposal would also re-establish that the act is the “exclusive” means for authorizing intelligence wiretaps, even in the face of Mr. Bush’s claims of constitutional authority to order surveillance on terrorism suspects outside the courts. And it would allow for a Congressional review of the wiretapping program, something Republicans had tried to avoid.

House Democrats, meanwhile, appear willing to settle for the FISA court’s having a smaller oversight role in approving the National Security Agency’s surveillance procedures in advance. They offered a counterproposal to Republicans late last week that left both sides optimistic.

As hard as the White House has pushed, Democrats may have even more at stake. They acknowledge not wanting to risk reaching their national convention in Denver in August without a deal, lest that create an opening for the Republicans and Senator John McCain, their presumptive presidential nominee, to portray themselves as tougher on national security  a tried-and-true attack method in the past  just as the Democrats are nominating Senator Barack Obama.

Mr. Bush used that line of attack in January and February, imploring Congress to renew the broadened spy powers it had granted last August. The surveillance plan was essential, Mr. Bush said at the time, because terrorists were planning attacks on American soil “that will make Sept. 11 pale in comparison.”

Despite the president’s pleas, House Democrats refused to buckle, a rare instance when they stood their ground against Mr. Bush on a matter of national security. They allowed the August law to expire in February.

Caroline Fredrickson, who leads the Washington office of the American Civil Liberties Union, said Democrats should continue to resist the White House’s pleas for broadened spy power, even in the face of political pressure.

A return to the older surveillance rules, requiring individualized warrants for all wiretaps, would be a positive step, Ms. Frederickson said. The last thing Congress should do, she said, is enact a major overhaul just before Mr. Bush leaves office.

“Why not just kick it down the road” through a short-term extension, she asked. “If there’s a need to do something, they should do the least harm possible.”